con

their minds. Mr. Mellish contended that "used as a railway constructed under the powers of an Act of Parliament for public conveyance," might mean, used as a railway is used which has been constructed under the powers of an Act of Parliament; but that would in effect be to construe the statute as if "constructed" were not there. The present railway is used as a railway under the powers of an Act of Parliament; but it was not constructed under the powers of an Act of Parliament; and the awkward word “ structed" is there, and I do not think we can reject it. The clause must mean, used as a railway, which railway has been constructed under the powers of an Act of Parliament. All the words must have effect given to them: "used" is put in in order to exclude a railway, if falling into disuse after it has been constructed. I cannot say, therefore, that the words mean, used in the same way as a railway constructed under the powers of an Act of Parliament; they can only mean, used as a railway, which railway has been so constructed. I dare say that was not what the legislature meant,

but we can only look at the words as they stand.

MELLOR, J. I have not been free from doubt; but on further reflection I feel that I cannot read the section as Mr. Mellish proposes without rejecting some of the words or introducing other words.

LUSH, J. I share in the regret expressed by the Lord Chief Justice. We can only collect the intention of the legislature from the language they have employed, and we must put a reasonable sense on every word used. The section imposes two conditions: that the land shall be used only as a railway, and the railway shall have been constructed under the powers of an Act of Parliament. And I do not think we can construe it as Mr. Mellish proposes without straining the language.

Judgment for the respondents.

Attorneys for appellants: Williamson, Hill, & Co.

Attorneys for respondents: Pattison, Wigg, & Co.

By s. 17 of The Wine and Beerhouse Act, 1869, "where any person is convicted of an offence against the tenor or conditions of a licence granted to him under any of the therein recited Acts, if any previous conviction since the passing of this Act be proved against him, the offence of which he is last convicted shall be deemed to be a second or third offence as the case may be. The defendant, who held a licence to sell beer under 11 Geo. 4 & 1 Wm. 4, c. 64 (one of the recited Acts) had been, since the passing of the above Act of 1869, convicted under 11 & 12 Vict. c. 49, s. 1, of keeping her house open on Sunday forenoon, which was also contrary to the tenor of her licence, and she was afterwards convicted of refusing to admit a constable under 4 & 5 Wm. 4, c. 85, s. 7, and adjudged as for a second offence :

Held, that the first conviction was for an offence against the tenor of her licence so as to make it a previous conviction within the meaning of s. 17.

MOTION for a rule, calling on two Justices of Cheshire to shew cause why a writ of certiorari should not issue to bring up a conviction made by them on the 6th of October,

SHORT. [5 Q. B. 174.]

1869, whereby one Margaret Short, being a person licensed to sell beer, ale, and porter by retail, was convicted that she did unlawfully refuse to admit one Hindley into her house, he being a police constable and in the due execution of his duty.

The conviction recited four previous convictions against Margaret Short, for keeping her house open for the sale of beer on Sundays during prohibited hours; the last of such convictions being on the 25th of July, 1869, under 11 & 12 Vict. c. 49, s. 1, which makes it an offence to open a house for the sale of beer on Sundays before half-past twelve; and adjudged that Margaret Short should be disqualified from selling beer for two years under 4 & 5 Wm. 4, c. 85, s. 7, by which statute the justices were empowered to inflict such a punishment if the offence were a second offence.

By s. 17 of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27), it is enacted that "where any person is convicted of an offence against the tenor or conditions of a licence granted to him under any of the said recited Acts [11 Geo. 4 & 1 Wm. 4, c. 64; 4 & 5 Wm. 4, c. 85; 3 & 4 Vict. c. 61; 24 & 25 Vict. c. 21; 26 & 27 Vict. c. 33], or of an offence for which a penalty is imposed by the said recited Acts . . . if any previous conviction or convictions since the passing of this Act [12th of July, 1869], for any of the said offences be proved against him, the

claimed title to the land, and commenced an action of trespass against the prosecutor. The prosecutor then saw the attorney for S. Ritson, who produced the deed charged as a forged deed, and the prosecutor commenced this prosecution against W. and S. Ritson.

This deed was dated the 12th of March, 1868, the date being before W. Ritsou's deed of assignment and the conveyance to the prosecutor, and purported to be made between W. Ritson of the one part and S. Ritson of the other part. It recited the original conveyance in fee to W. Ritson, and that W. Ritson had agreed with S. Ritson for a lease to him of part of the land at a yearly rent, and then professed to demise to S. Ritson a large part of the frontage and most valuable part of the land conveyed to the prosecutor as mentioned above, for the term of 999 years from the 25th of March then instant. The deed contained no notice of any title, legal or equitable, of the prosecutor, and contained the usual covenants between a lessor and lessee. It was executed by both W. and S. Ritson.

The case then stated evidence which shewed that the deed had in fact been executed after the assignment to W. Ritson's creditors and after the conveyance to the prosecutor, and that the deed had been fraudulently antedated by W. and S. Ritson for the purpose of overreaching the conveyance to the prosecutor.

The counsel for the prisoners contended that the deed could not be a forgery, as it was really executed by the parties between whom it purported to be made. The learned judge told the jury that if the alleged lease was executed after the conveyance to the prosecutor, and antedated with the purpose of defrauding him, it would be a forgery. The jury found both the prisoners guilty.

The question was, whether the prisoners were properly convicted of forgery under the circumstances.

The case was argued before Kelly, C.B., Martin, B., Blackburn, Lush, and Brett, JJ.

Torr, for the prisoners. The deed in this case was not forged, because it was really made between and executed by W. & S. Ritson, the persons by whom it purported to be executed, and between whom it purported to have been made. The date of the deed was false, but a false statement in a deed will not render the deed a forgery. If this deed were held to be a forgery, then any instrument containing a false statement made fraudulently would be forged.

[BLACKBURN, J. This is not merely a deed containing a false statement, but it is a false deed.]

There is no modern case to shew that a deed like this is a forgery. To constitute a forgery, there must be either, first, a false name, or, secondly, an alteration of another's deed, or, thirdly, an alteration of one's own deed. There is no modern authority to include any other kind of forgery. Salway v.

Wale (Moore, 655) appears an authority against the prisoners, but that was a decision upon 5 Eliz. c. 14, which is not worded in the same way as 24 & 25 Vict. c. 98, s. 20. The definitions of the text-writers, which may seem to include a case like the present, are not in themselves authorities. The decisions on which the definitions purport to be based, and not the definitions themselves, are the authorities which must be looked at.

Addison, for the prosecution. The deed in this case is a forgery because it is a false deed fraudulently made. Although there is no recent case where similar facts have been held to constitue a forgery, yet such a state of facts comes within the definitions of forgery given by the text books: Russell, vol. ii. p. 709, 4th ed.; Hawkins, P. C. bk. i. cap. 20, p. 263, 8th ed.; 3 Inst. 169; Bacon's Abr., tit. Forgery, A.; Comyns Dig., tit. Forgery, A. I. Salway v. Wale (Moore, 655) is also an authority for the conviction. The essence of forgery is the false making of an instrument; Rex v. Parkes (2 Leach, at p. 785).

KELLY, C.B. During the argument I certainly entertained doubts on this question, because most, or indeed all, the authorities cited are comparatively ancient. They are all before the statute (24 & 25 Vict. c. 98, s. 20), on which this indictment is framed, and before 11 Geo 4 & 1 Wm. 4, c. 66, the statute which was in force when most of the modern textbooks on criminal law were written. When, however, we look to all these authorities and to the text-writers of the highest reputation, such as Comyns (Dig., tit. Forgery, A. I.), Bacon (Abr., tit. Forgery, A.), and Coke (3 Inst. 169), we find there is no conflict of authority. Sir M. Foster (Foster's Crown Cases, 116), Russell on Crimes (vol. ii. p. 709, 4th ed.), and other writers, also agree. The definition of forgery is not, as has been suggested in argument, that every instrument containing false statements fraudulently made is a forgery; but, adopting the correction of my Brother Blackburn, that every instrument which fraudulently purports to be that which it is not is a forgery, whether the falseness of the instrument consists in the fact that it is made in a false name, or that the pretended date, when that is a material portion of the deed, is not the date at which the deed was in fact executed. I adopt this definition. It is impossible to distinguish this case in principle from those in which deeds made in a false name are held to be forgeries.

There is no definition of forgery in 24 & 25 Vict. c. 98, but the offence has been defined by very learned authors, and we think this case falls within their definitions. Under these circumstances the conviction must be affirmed.

MARTIN, B. I am of the same opinion. Mr. Torr was no doubt right in saying that this is not a familiar case. That, however,

M

need not affect the principle to be applied in deciding it. All the authorities are to the same effect. What is laid down on the subject by Comyns (Dig., tit. Forgery, A. I.), Russell on Crimes (vol. ii. p. 709, 4th ed.), Sir M. Foster (Foster's Crown Cases, 116), and in Tomlin's Law Dictionary (Forgery), is good sense. All the authorities, both the ancient and modern, agree. There is no reason why the principle of these authorities should not apply to the present case, except that the facts here are somewhat unusual.

BLACKBURN, J. I am of the same opinion. By 24 & 25 Vict. c. 98, s. 20, it is felony to forge" any deed with intent to defraud. The material word in this section is "forge." There is no definition of "forge" in the statute, and we must therefore inquire what is the meaning of the word. The definition in Comyns (Dig., tit. Forgery, A. I.) is "forgery is where a man fraudulently writes or publishes a false deed or writing to the prejudice of the right of another"-not making an instrument containing that which is false, which, I agree with Mr. Torr, would not be forgery, but making an instrument which purports to be that which it is not. Bacon's Abr. (tit. Forgery, A.), which, it is well known, was compiled from the MS. of Chief Baron Gilbert, explains forgery thus: "The notion of forgery doth not so much consist in the counterfeiting of a man's hand and scal . . . but in the endeavouring to give an appearance of truth to a mere deceit and falsity, and either to impose that upon the world as the solemn act of another which he is in no way privy to, or at least to make a man's own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation which in truth and justice it ought not to have." The material words, as applicable to the facts of the present case, are, "to make a man's own act appear to have been done at a time when it was not done." When an instrument professes to be executed at a date different from that at which it really was executed, and the false date is material to the operation of the deed, if the false date is inserted knowingly and with a fraudulent intent, it is a forgery at common law.

Ordinarily the date of a deed is not material, but it is here shewn by extrinsic evidence that the date of the deed was material. Unless

the deed had been executed before the 5th of May, it could not have conveyed any estate in the land in question. The date was of the essence of the deed, and as a false date was inserted with a fraudulent intent, the deed was a false deed, within the definition in Bacon's Abridgement. This is a sufficient authority.

If, however, there were no authority, I think that the principle I have mentioned is right and expedient. Besides this, however, Coke (3 Inst. 169), speaking of forgery before the statute of Elizabeth (5 Eliz. c. 14), states that the principle of forgery does apply to a case like this, and that to make a deed purporting to bear a false date may be forgery. To the same effect is Sir M. Foster in Lewis's Case (Foster's Crown Cases, 116), where all the judges in consultation assumed that antedating a deed might be a forgery.

All the text-books agree, and there is no single authority against the definition I have stated. Mr. Torr, however, says that the definition is old. I think that this gives it all the greater weight.

...

LUSH, J. I also think that the conviction should be affirmed. If the parties to this deed had inserted the true date in the first instance and had subsequently altered it, there is no question that it would have been a forgery. The offence would then have fallen within the letter of 24 & 25 Vict. c. 98, s. 20, which says, Whoever with intent to defraud shall forge or alter. any deed," &c., shall be guilty of felony. It would be absurd to hold that an alteration might constitute a forgery, but that an original false making would not. We could not yield to such a distinction unless we were obliged. I am satisfied that "forge" in s. 20 of 24 & 25 Vict. c. 98, should be understood in the sense in which that word is used in the authorities, new and old, on the subject. To make a deed appear to be that which it is not, if done with a fraudulent intent to deceive, is a forgery, whether the falsehood consist in the name or in any other

matter.

BRETT, J., concurred.

Conviction affirmed.

Attorney for prisoner: J. Pearce, for S. Stringer, Manchester.

Larceny-Mock Auction-" Taking "-Payment made under Fear.

A. acted as auctioneer at a mock auction. He knocked down some cloth for 26s, to B., who had not bid for it, as A. knew. B. refused to take the cloth or to pay for it; A. refused to allow her to leave the room unless she paid. Ultimately, she paid the 26s. to A., and took the cloth. She paid the 26s. because she was afraid. A. was indicted for, and convicted of, feloniously stealing these 26s.:

Held, that the conviction was right, because if the force used to B. made the taking a robbery, larceny was included in that crime; if the force was not sufficient to constitute a robbery, the taking of the money nevertheless amounted to larceny, as B. paid the money to A. against her will, and because she was afraid.

Held, further, that, under the circumstances, it was not necessary that the jury should be asked whether B. paid the money against her will, as from the evidence stated in the case it was clear that there could have been no doubt in the minds of the jury that the money was so paid.

CASE stated by the Assistant Barrister to the Recorder of Liverpool:

At the court of quarter sessions for the borough of Liverpool, on the 30th of August, 1869, P. McGrath was tried upon an indictment which charged him with feloniously stealing 26s., the money of Peter Powell.

It was proved that on the 26th of August, 1869, Jane Powell, the wife of the prosecutor, Peter Powell, passed a sale room, and upon being invited to enter, did so. There were about one dozen persons in the sale room, and the prisoner was acting as auctioneer, and selling table cloths and other articles. After two table cloths had been sold and purchased by two women who were present, a piece of cloth was put up for sale by auction, the prisoner acting as auctioneer. A man bid 25s. for it, when another man standing between Jane Powell and the door said to the prisoner that she had bid 26s. for it, upon which the prisoner knocked it down to her. The witness Jane Powell said: "I had not bid for it, nor made any sign. I told the prisoner I had not bid. He said I did. I said I did not, and would not pay for it: I said this several times. I went to go out. The prisoner said I had bid for it, and must pay before I would be allowed to go out. I was then prevented going out by the man who had said I had bid for it. He stood between me and the door, and said I must pay for it. I wanted to go

out and the man prevented me. I then paid 26. to the prisoner: I paid the money because I was afraid. The piece of cloth was then given to me, and I took it away." In about an hour after she returned and saw the prisoner, and told him she could not keep the cloth, as she had not bid for it. He told her he could not give the money back, but if she came the following week he would exchange it. The next day the place was closed when Peter Powell and his wife went to call there about the cloth, but close by in the street the prisoner and the man who said she had bid, and another man, by whom Jane Powell had been invited on the first occasion into the sale room, were seen together. They immediately separated, and went different ways. Peter Powell followed the prisoner, and said to him: "I believe you are the man who forced my wife to pay for a piece of cloth she never bid for?" upon which he replied, "I told her to come to the house on Monday." The prisoner was given into custody. When charged he said to the policeman, "She cannot lock me up; she paid me the money."

The counsel for the prisoner objected that the facts did not prove a larceny.

The jury were directed that if the prisoner had the intention to deprive Jane Powell of her money, and in order to obtain it was guilty of a trick and artifice, by fraudulently asserting that she had made a bid, when she had not, as he well knew, and that he obtained the money by such means, he was guilty of the offence charged.

The jury found that no bid had been made by Jane Powell, which the prisoner knew, and that he obtained the money from her by the trick and artifice mentioned above. verdict of guilty was then entered.

A

The questions were, first, whether the facts proved a larceny; secondly, whether the jury were rightly directed.